EFF councillor loses fight to keep his job as red berets slug it out in court

19 June 2021 - 10:24
By philani nombembe AND Philani Nombembe
EFF councillor Siyabonga Simelane is suing the party after it asked him to resign.
Image: The Times / Moeletsi Mabe EFF councillor Siyabonga Simelane is suing the party after it asked him to resign.

It was red beret versus red beret in the high court when an EFF councillor pulled out all the stops to keep his job.

Newcastle councillor Siyabonga Simelane is suing his party in the high court in Pietermaritzburg after the EFF backtracked on its decision to deploy him to the post.

But his bid to “continue serving as a councillor” pending his court application to review the party’s decision failed this week. He was slapped with legal costs.

According to the judgment, Simelane was mistakenly declared as the nominated candidate to fill a vacancy created by the sacking of EFF proportional representation councillor Shadrack Thwala in October 2020.  He then completed the nomination document.  

EFF secretary Marshall Dlamini wrote to the Electoral Commission (IEC) in November 2020 and informed it about Thwala’s expulsion. Dlamini told the commission and the municipal manager that Thwala was being replaced by Simelane.

Within hours, Dlamini wrote another letter to the IEC saying the EFF had made an error and was “recalling” Simelane.

“We hereby request that a declaration of the vacancy remains open until the organisation advises on who should fill the vacancy,” he said.

But in December, the IEC manager for voter registration and party liaison wrote to the municipal manager and “advised” that Simelane was the “candidate at the top of the party list for the EFF and had consequently been declared elected to the Newcastle Local Municipality”.

When the EFF became aware of what had happened, the party wrote to Simelane and informed him about the “error” and said it had nominated Menziwa Ntshangase instead.

The party asked Simelane to “write a letter to the municipal manager and resign as a public representative of the EFF so that the municipal manager can declare (a) vacancy”.

The judgment said: “[Simelane] responded in writing to the EFF’s letter on January 28 2021 and indicated that it was a well-known fact that the two persons ahead of him on the party list had withdrawn their candidature and that as a consequence he was then requested by the EFF to fill the vacancy.

“According to him, he accepted the invitation without hesitation. To his credit, he indicated further that the upper structures of the EFF should assist him in preparing the letter of resignation that he was being called upon to sign, and that he would sign it provided that it was lawful to do so and that it complied with the EFF’s policy.

“It appears that the necessary letter was not drafted by the EFF and the applicant consequently did not resign.”

In February, the IEC wrote to the municipal manager and acknowledged the error. But Simelane told the EFF it would be “foolish” for him to resign.

“I do not have any portfolio in this municipality for me to resign from, and the reasons to resign have not been made known to me,” he told the party.

“Neither the EFF nor Newcastle municipality manager had informed me that I am a councillor hence I find it foolish to resign from a position that I do not hold.”

Simelane then took the court route. He brought an application to “review the decision taken on February 19 by the IEC to retract his declaration as the EFF’s councillor” and “confirmation of the declaration of himself on December 7 2020 as the EFF’s  councillor” in March. The application is still pending.

He launched another application and asked that Ntshangase be suspended and to be allowed to “continue serving as councillor” pending his review application. But the court dismissed the application with costs on Tuesday.